Pre-Session Reading:

Energy projects are usually long, complex and require a substantial level of capital. Additionally, the sector has significant exposure to geological events, political changes and environmental regulations. For these reasons, disputes are common in the energy sector, and arbitration has become the preferred method of resolving these disputes, particularly at the international level (See https://www.acerislaw.com/resolving-energy-disputes-through-arbitration).

Disputes arising from construction/engineering and energy historically generate the largest number of ICC cases. The trend was confirmed in 2020 with 194 and 167 cases respectively, accounting for approximately 38% of all cases.

Presentation:

Gas price review: while in typical commercial arbitration, the arbitral tribunal is asked to determine which party is liable and order compensation, in disputes involving gas price review, the arbitral tribunal must determine whether the requirements for a price adjustment have been fulfilled and, if so, to determine the price adjustment. In such disputes, arbitrators must understand, at least, the basic principles of the gas market, although expert evidence is often adduced.

The Evolution of Natural Gas Price Review Arbitrations

Gas Supply and LNG Arbitrations (pages 1-8)

ICC award gives Edison €450 million gas price discount

Gas price reviews: is arbitration the problem?

Example of a GAS SALE AND PURCHASE AGREEMENT:

Examples of Arbitration Rules: 

Oil & Gas: Naftogaz v Gazprom - Right to a natural gas price revision

Nafogaz v Gazprom: the legal battle of Stockholm

Investment arbitration is a procedure to resolve disputes between foreign investors and host States (also called Investor-State Dispute Settlement or ISDS). The possibility for a foreign investor to sue a host State is a guarantee for the foreign investor that, in the case of a dispute, it will have access to independent and qualified arbitrators who will solve the dispute and render an enforceable award.

International investment law and investment arbitration promote economic development through the continuous flow of foreign investment and technology to capital-constrained countries. Unlike contractual agreements that require extensive and confidential negotiations, investment treaties provide a transparent legal framework that facilitates decision-making for investors. The guarantees in these treaties tend to be comprehensive and capable of protecting investors against a wide range of governmental measures.

Presentation:

Reading:

0) Introduction to Investment Arbitration (Source: Aceris Law LLC)

1) Energy Charter Treaty: Part III: Investment Promotion and Protection + Article 26

2) ECT: A Reader's Guide: C. Investment

3) Example: Venezuela seizes foreign oil fields

4) Konoplyanik, Andrei and Walde, Thomas. Energy Charter Treaty and its Role in International Energy: Investment (pages 532-541)

5) GAR_ECT: Development of the Energy Charter Treaty (pages 1-3), Jurisdiction of tribunals established pursuant to the ECT (pages 3-4), The ECT’s substantive protections (pages 11-15), FET (pages 15-21), Expropriation (pages 21-23).

About:

Intra-state arbitration plays a critical role in addressing border disputes within the energy sector, which often involve complex territorial and resource-related issues. These disputes can arise over the delineation of boundaries that impact resource extraction rights, especially in areas rich in oil, gas, or renewable energy potential. By providing a neutral and legally binding forum, intra-state arbitration helps prevent conflicts from escalating and ensures a fair resolution based on legal principles rather than power dynamics. This process is essential for maintaining regional stability, fostering cooperation, and ensuring that energy resources are managed and utilized efficiently and equitably. The resolution of such disputes through arbitration thus supports both national interests and regional peace.

Presentation:

Reading:

1) PCA: MODEL ARBITRATION CLAUSES FOR USE IN CONNECTION WITH THE PERMANENT COURT OF ARBITRATION OPTIONAL RULES FOR ARBITRATING DISPUTES BETWEEN TWO STATES.

2) V. V. Veeder: Inter-State Arbitration, The Oxford Handbook of International Arbitration.

3) PCA Arbitration Rules

4) Freya Baetens & Rumiana Yotova: The Abyei Arbitration: A Model Procedure for Intra-State Dispute Settlement in Resource-Rich Conflict Areas?   

INVESTMENT ARBITRATION: Mountaintop v. Laoc

Documents:

Factual Background:

Attribution:

Expropriation:

FET: